Sturges v. Swift

32 Miss. 239

Opinion

Pishee, J.,

delivered the opinion of the court.

This was an action in the Circuit Court of Copiah county, by plaintiff below to recover the amount of a due-bill executed by the defendant to the plaintiff. The defence set up is, that the parties were co-partners, and that the due-bill was executed for a balance due by the defendant to the plaintiff on account of co-partnership transactions; and that the co-partnership not having been dissolved, the plaintiff’s remedy was in a court of equity. We disagree with counsel in this position. One partner may sue his co-partner, at law, on a note, obligation, or even an account stated, ascertaining the sum clue. The object of going into equity is, to get an account concerning matters about which the parties are unable to agree; but to hold that when they have agreed and given a legal shape to their contracts, such contracts cannot be enforced at law, would be equivalent to holding that either the subject was of such a nature, or the relation of the parties such, that the law would not permit them to contract. The almost universal rule is, that where there is not a legal prohibition, parties may contract upon the principle that the law acts by restraint and not by conferring rights.

The question as to the set-oif has been settled by former decisions.

Judgment affirmed.